Pentagon Recommends Repeal of Sodomy Ban

WASHINGTON (U.S. Newswire) --As reported in this morning's New York Times, the Pentagon has recommended repeal of Article 125 of the Uniform Code of Military Justice (UCMJ), the military's ban on consensual sodomy.

The Pentagon's recommendation has been referred to the House Armed Services Committee's personnel subcommittee and is based on guidance from the Joint Services Committee on Military Justice (JSC), a panel of attorneys from each military service that annually suggests changes to the military's criminal code. The recommendation was also reviewed and approved by the Department of Defense's Office of General Counsel. Servicemembers Legal Defense Network (SLDN), twice in testimony before the JSC, urged the panel to decriminalize private, consensual conduct.

"Service members should not be expected to automatically check their constitutional rights at the barracks door," said SLDN Director of Law & Policy Sharra E. Greer. "Every service member deserves laws that are neither arbitrary nor vindictive. Congress should approve the Committee's recommendation. Consensual sodomy prosecutions are both unwarranted and unconstitutional."

Justin Peacock was discharged from the Coast Guard for holding hands with a man. By J. Rolfe for SLDN http://www.sldn.org/

Under military law, consensual sodomy by heterosexuals as well as same-sex couples can be punished by up to a five year prison sentence. The constitutionality of the statute was called into question after the U.S. Supreme Court's historic Lawrence v. Texas decision, abolishing similar state sodomy laws. In 2001, a blue ribbon panel convened to review the UCMJ also called for repeal of the statute. The Cox Commission, chaired by retired Judge Walter T. Cox III, called military sodomy prosecutions "arbitrary, even vindictive." That Commission also recommended replacing the existing statute with one more closely resembling civilian law.

SLDN cautioned service members, however, that the JSC recommendations are not yet law, and must be approved by Congress. SLDN attorneys also expressed concern that the armed forces may try to punish same-sex sodomy under Article 134 of the UCMJ, which criminalizes acts that are "detrimental to good order and discipline." "It remains to be seen if the recommendation by the Pentagon will be implemented, and if so, whether or not same-sex consensual sodomy prosecutions will cease," Greer said. "Pentagon leaders must not suggest repeal of the consensual sodomy prohibition in Article 125 only to continue violating Lawrence under a different statute. To do so would be a clear violation of service members' constitutional guarantee of privacy."

Military courts have already suggested that Article 125 may no longer stand further constitutional scrutiny. In Marcum v. USA, the Court of Appeals for the Armed Forces (CAAF), the military's highest appeals court, indicated that the Supreme Court's Lawrence decision also applies to the armed forces. (The court declined to strike down Article 125 in Marcum because of evidence of a superior -subordinate relationship.) Since the Marcum decision, at least two sodomy convictions have been overturned by the Army Court of Criminal Appeals.

The impact of today's recommendation on `Don't Ask, Don't Tell,' said Greer, is unclear. "Repeal of Article 125 would remove a significant obstacle in the fight to end the military's gay ban," she said. "Pentagon leaders can no longer justify banning gays because of private, consensual conduct if the military sodomy statute is repealed. Commanders should be concerned about winning the war on terror, not about prying into service members' private lives. However, service members must understand that `Don't Ask, Don't Tell' remains law, and those known to be lesbian, gay or bisexual will continue to be discharged."

Congress must approve the JSC's recommendation before it becomes law.